Centralize Administrative Hearings

Section 1. Legislative findings. New York's system of administrative adjudication is fragmented, and offers the appearance of unfairness to those who seek access to relief from administrative actions that they consider unfair or unfounded.

The state's administrative adjudication responsibilities are not unified because the system provides for the conduct of administrative hearings in each of the state agencies which enforce laws, rules and regulations. The result is duplication of functions, inconsistencies in procedures and policies, and confusion for those who seek to make use of the process. At the same time, lodging the responsibility for adjudicating cases in the agencies which are responsible for bringing enforcement actions can create the appearance of unfairness to those who may feel that their accuser is also judging their acts.

In contrast to New York's agency based system, a number of states have adopted a different model for their administrative adjudication processes, which centralizes the responsibility for hearing contested administrative adjudications in a single office. This alternative model offers savings from the elimination of duplicative responsibilities, consistency in processes, and fairness for those who seek relief from administrative rulings with which they disagree.

This act creates a process by which New York state will implement a central system of administrative hearings.

§ 2. The executive law is amended by adding a new article 26-A to read as follows:

EXPLANATION--Matter in italics (underscored) is new; matter in brackets

[ ] is old law to be omitted.

LBD03408-01-7

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ARTICLE 26-A

OFFICE OF ADMINISTRATIVE HEARINGS Section 720. Definitions.

721. Office of administrative hearings.

722. Chief administrative law judge; functions, powers and

duties.

723. Hearings.

724. Hearing officers; qualifications, powers and duties.

725. Adjudicatory proceedings to which hearing officers are not

assignable; exceptions.

726. Construction; severability.

§ 720. Definitions. When used in this article unless the context otherwise requires:

1. "Agency" means any department, board, bureau, commission, division, office, council, committee or officer of the state, or a public benefit corporation or public authority, a majority of the governing board members of which are either appointed by the governor or serve as members by virtue of their service as an officer of a state department, division, agency, board or bureau or combination thereof authorized by law to make rules or to make final decisions in adjudicatory proceedings but shall not include the governor, agencies in the legislative and judicial branches, agencies created by interstate compact or international agreement or the division of military and naval affairs to the extent it exercises its responsibility for military and naval affairs, the division of state police, the identification and intelligence unit of the division of criminal justice services, the state insurance fund, the unemployment insurance appeals board, the workers' compensation board, the state division of parole, the department of corrections and community supervision, the division of tax appeals, the public employment relations board, the employment relations board, the New York state ethics commission or the department of family assistance.

2. "Agency member" means and includes the individual or group of individuals constituting the highest authority within any agency authorized or required by law to make final decisions in an adjudicatory proceeding.

3. "Adjudicatory proceeding" means any activity, including licensing activity, as defined in article one of the state administrative procedure act and hearings of the department of motor vehicles pursuant to article two-A of the vehicle and traffic law, before an agency in which a determination of the legal rights, duties, obligations, privileges, benefits or other legal relations of named parties thereto is required by law or pursuant to a contract to which an agency is a party where such contract includes adjudicatory determinations conducted by an agency to be made only after an opportunity for a hearing on the record, but shall not include rule making proceedings as defined in article one of the state administrative procedure act including rate making proceedings or other actions as defined by paragraph (a) of subdivision two of section one hundred two of the state administrative procedure act, an employee disciplinary action, professional licensing or student disciplinary action or a proceeding conducted by the American Arbitration Association or any similar neutral adjudicatory entity.

4. "Chief administrative law judge" means the director of administrative hearings.

5. "Hearing officer" means a person appointed by the chief administrative law judge to conduct or preside over contested adjudicatory proceedings in accordance with this article.

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6. "Contested adjudicatory proceeding" means an adjudicatory proceeding in which a request for a hearing on disputed issues is made.

7. "Uncontested adjudicatory proceeding" means an adjudicatory proceeding in which no request for a hearing is received after notice is given.

8. "Office" means the office of administrative hearings.

§ 721. Office of administrative hearings. 1. There is hereby created in the executive department an office of administrative hearings. The office shall be independent of state administrative agencies and shall, notwithstanding the provisions of any other general or special law, be responsible for impartial administration of adjudicatory proceedings in accordance with the provisions of this article other than those exempted elsewhere in this article. The central office of the office shall be located in Albany, and regional offices shall be established and maintained by the office as the chief administrative law judge may determine and for which appropriations are made therefor.

2. The head of the office, who shall be its chief executive officer, shall be the chief administrative law judge who shall be appointed by the governor by and with the consent of the senate to serve for a term of six years. Such person shall be knowledgeable on the subject of administrative law and procedures and skilled in matters pertaining thereto. Once appointed and confirmed, the chief administrative law judge shall serve until his or her term expires or until his or her successor has been appointed and has been qualified. A vacancy in the office of chief administrative law judge occurring otherwise than by expiration of term shall be filled for the unexpired term in the same manner as original appointments. The chief administrative law judge may, after notice and an opportunity to be heard, be removed by the governor for neglect of duty or misfeasance in office, and the chief administrative law judge may be removed for other cause by the senate on the recommendation of the governor. The chief administrative law judge shall devote his or her entire time to the duties of the office. The chief administrative law judge shall receive a salary in the same amount as that received by a state officer designated in paragraph (c) of subdivision one of section one hundred sixty-nine of this chapter.

§ 722. Chief administrative law judge; functions, powers and duties. The chief administrative law judge shall have the following functions, powers and duties:

1. To establish, consolidate, alter or abolish any bureau in the office; to appoint the head of such bureaus and fix their duties; such bureaus may be established for the purpose of providing specialized hearings for any given subject area.

2. Subject to the civil service law and the applicable collective bargaining agreement, to appoint, remove or transfer deputies, officers, assistants, hearing officers, counsels and other employees as may be necessary for the exercise of the powers and performance of the duties of the office; and to prescribe their duties, and fix their compensation within the amounts appropriated therefor.

3. When regularly appointed hearing officers are not available or when the chief administrative law judge finds that the character of a specific case requires the utilization of a different procedure for assigning hearing officers, the chief administrative law judge, pursuant to applicable collective bargaining agreements, may contract with qualified individuals to serve as hearing officers. Such individuals shall be compensated for their services on a contractual basis for each hearing pursuant to a reasonable fee schedule established in advance by the

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chief administrative law judge. The chief administrative law judge may not contract with any individual who is at that time an officer or employee of the state. Temporary hearing officers shall have the same qualifications for appointment as permanent hearing officers.

4. To develop and implement a program of evaluation to aid the chief administrative law judge in the performance of his or her duties, and to assist in the making of promotions, demotions or removals. This program of evaluation shall focus on three areas of performance: competence, productivity and demeanor. It shall include consideration of: industry and promptness in adhering to schedules, making rulings and rendering decisions; tolerance, courtesy, patience, attentiveness, and self control in dealing with litigants, witnesses and representatives, and in presiding over adjudicatory proceedings; skills and knowledge of the subject of administrative law and procedures and new developments therein; analytical talents and writing abilities; settlement skills; quantity, nature and quality of case load disposition; impartiality and conscientiousness. The chief administrative law judge shall develop standards and procedures for this program, which shall include taking comments from selected litigants and representatives who have appeared before a hearing officer. The methods used by a hearing officer but not the results arrived at by the hearing officer in any case may be used in evaluating a hearing officer. Before implementing any action based upon the finding of the evaluation program, the chief administrative law judge shall discuss the findings and proposed action with the affected hearing officer; provided however that the chief administrative law judge's authority pursuant to this subdivision is subject to the provisions of the civil service law and the applicable collective bargaining agreement.

5. To the extent permitted by law, to publish and make available to the public all recommended decisions rendered by a hearing officer and all decisions rendered by an agency after a review of a hearing officer's recommended decision. The chief administrative law judge may charge a reasonable fee for a copy of such determination or decision. Whenever any law of confidentiality prevents the publication of the identity of any of the parties, an edited version of the recommended decision and decision of the agency shall be prepared which shall not disclose the identities of the protected parties.

6. To collect, compile and prepare for publication statistics and other data with respect to the operations and duties of the office, and to submit annually to the governor, the temporary president and minority leader of the senate and the speaker and minority leader of the assembly a report on such operations including but not limited to, the number of hearings initiated, the number of recommended decisions rendered, the number of partial or total reversals by the agencies, the number of proceedings pending, and on any recommendations of the office of statutory or regulatory amendments.

7. To study the subject of administrative adjudication in all its aspects, and to develop recommendations including alternate dispute resolution including preliminary or prehearing conferences or mediation which would promote the goals of fairness, uniformity and cost-effectiveness. Agencies shall give the office ready access to their records and full information and reasonable assistance in any matter of research requiring recourse to them or to any data within their knowledge or control. Such access, information and assistance shall not be required where it would be within existing requirements of confidentiality.

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8. To adopt, promulgate, amend and rescind rules and regulations to carry out the provisions of this article and the policies of the office in connection therewith. Such rules and regulations shall be consistent with the state administrative procedure act, shall supersede any inconsistent agency rules, and shall include, but not be limited to, uniform standards and procedures, rules of practice, rules of evidence, standards for determining when an expedited hearing will be conducted, standards for uncontested proceedings, standards and guidelines related to time limits for agency action pursuant to the provisions of subdivision one of section three hundred seven of the state administrative procedure act, standards for the assignment of hearing officers and their removal from cases, and for the maintenance of records in order that, where authorized by law, the costs of a hearing may be allocated to a party or to the federal government.

9. To secure, compile and maintain all reports of hearing officers issued pursuant to this article, and such reference materials and supporting information as may be appropriate and to establish appropriate management information systems.